from the don't-sue-a-bunch-of-lawyers dept

Two years ago, we wrote about the case dubbed Rakofsky v. the Internet. The details are too numerous to go into, so I suggest reading that post, but the very short summary is that Joseph Rakofsky, a recent graduate of Touro law school, somehow got himself onto a case defending someone accused of murder. The case was not going well, with the judge asking the defendant a few times if he was happy with Rakofsky's representation. After a supposed "communications breakdown" the defendant let the judge know he was no longer comfortable with Rakofsky -- and the judge declared a mistrial. As part of that, the judge also clearly expressed his belief that Rakofsky was not qualified to be in the position he was in:

I was astonished that someone would purport to represent someone in a felony
murder case who had never tried a case before and that local counsel, Mr. Grigsby,
was complicit in this.

It appeared to the Court that there were. . . defense theories out there, but [Rakofsky
had] the inability to execute those theories. It was apparent to the Court that there
was ... not a good grasp of legal principles and legal procedure of what was
admissible and what was not admissible that inured, I think, to the detriment of Mr.
Deaner."

Also of concern was that an investigator hired by Rakofsky in the case had revealed to the court an email from Rakofsky in which Rakofsky told him:

I) Please trick Leigh (old lady) into admitting:
a) she told the 2 lawyers that she did not see the shooting and
b) she told 2 lawyers she did not provide the Government any
information about [the] shooting.

Rakofsky later refused to approve a voucher for that investigator's payment, leading the investigator to claim to the court that he was "terminated and uncompensated... based on his refusal to follow an e-mail request from Mr. Rakofsky ...instructing him to
try to 'trick' a witness into changing her testimony."

After all of this, Rakofsky, oddly, appeared to celebrate the ruling in a post on his Facebook account, suggesting he was happy with the results. That posting resulted in more mockery in online circles.

Again, all of this was reported widely, including here at Techdirt. However, what we mainly reported on was the fact that after lots of people talked about this and mocked Rakofsky (with some questioning the claims on his website), Rakofsky appeared to sue nearly everyone who wrote about him and the case -- including a whole bunch of bloggers, but also the Washington Post (who did the initial report) and the American Bar Association (no joke) whose blog wrote about the story as well.

At the time, we said the story would be an interesting one to follow. That was two years ago. Six months after that, Rakofsky filed an insanely long amended complaint which, among many other things, attempted to add us to the lawsuit with a bunch of claims (including some that were factually untrue). Of course, once again hinting at Rakofsky's experience level and proficiency with the court systems, the motion to file that amended complaint later had to be withdrawn, because he filed it while a stay was in place barring him from such a filing. It took a while, but the case finally progressed -- and we have yet to be officially added to the lawsuit, something I certainly hope remains the case because suing us for reporting factually on what happened, while also providing some statements of opinion, is generally not going to end well. And indeed, so far, Rakofsky's case is not going well.

In a ruling on Friday, the Supreme Court of the State of NY basically shot down every single one of Rakofsky's claims, and granted the motions to dismiss of various defendants. The court very carefully details the factual background and then explains why the motions to dismiss are being granted. The court rejects Rakofsky's motion to file a second amended complaint based on a failure to state a claim:

granting plaintiffs' motion to amend would be futile since the allegations set forth in the proposed Second Amended Complaint are not sufficient to state a cause of action; as will be discussed below in defendants' motions to dismiss.
dismiss.

First, the court rejects the jurisdictional argument. Not surprisingly, the non-NY bloggers pointed out that a NY state court did not have jurisdiction over them, and the court was not convinced by various arguments by Rakofsky to the contrary:

It is quite clear that defendants" herein who operated legal blogs or posted comments'
on those blogs residing out of the country in Canada, or even in the United States ranging from
Washington, D.C. and Florida in the east, to Texas and California in the west, had virtually no
purposeful activity or minimum contacts with this state. There was certainly no purposeful activities
in this state which were substantially related to the alleged defamatory statements as defendants
neither wrote the alleged defamatory statements in this state nor did they direct them to our state
alone. The statements were posted on the internet with potential world-wide accessibility.

This Court rejects plaintiffs' primary argument in opposition that defendants received
"commercial benefits" from the hyper-links contained in their websites to invoke long-arm
jurisdiction. This connection to New York, if any, is too attenuated to exercise personal jurisdiction
over the out-of state defendants. Plainly stated, there are insufficient contacts with this state to "hale"
into court multiple defendants living thousands of miles away in other states which would "chill" their
right to free speech.

Good, clean ruling on that one. Moving on to the defamation claims. Again, Rakofsky runs into trouble. The court rules that the reporting on both the "trick" email and the mistrial may not have been exactly worded, but was close enough. On the email:

While the precise words are not exactly identical, they are similar enough to convey a fair report of the Rakofsky e-mail and the Bean motion that were inextricably intertwined with the judicial proceedings before Judge Jackson in the Deaner case. Even though the "trick" e-mail, the Bean motion and Judge Jackson's comments do not portray Rakofsky in a positive light, and
Rakofsky may wish to disavow or interpret them in a different way, the defendants were permitted
to publicly disseminate them as a report of a judicial proceeding.

On the mistrial question:

You can not look at Judge Jackson's comments
in isolation, but in context considering all of his comments and Rakofsky's trial performance. The
clear import of Judge Jackson's rulings was to excuse Rakofsky due to his lack of competence and
inexperience to defend Deaner in a murder trial. It is acknowledged that the Deaner murder trial was Rakofsky's first trial in a foreign jurisdiction and with which he was totally unfamiliar, and Judge
Jackson was vigilant in protecting Deaner's right to effective assistance of counsel.

Significantly, the reported fact that Judge Jackson declared a mistrial in the Deaner
case was not defamatory because even Rakofsky initially celebrated the mistrial as a positive
development in his career. In other words, defendants' report that a mistrial occurred does not
constitute defamation. Instead, the reported statements that Rakofsky was allegedly not competent,
inexperienced and unethical are the operative words which may give rise to defamation, except that
said content was privileged under the Civil Right Law § 74,

That last bit, Civil Rights Law § 74, says that you can't sue someone for libel "for the publication
of a fair and true report of any judicial proceeding." Basically, the defamation claims fail because what people reported was more or less accurate.

The court goes on to give more reasons why Rakofsky's claims fail, including the fact that some defendants are protected by a "republication" exception to defamation law and that they were expressing opinions rather than statements of fact in many cases. It also rejects the idea that there was "intentional infliction of emotional distress" as Rakofsky claimed, or intentional interference with a contract. Rakofsky also, quite amazingly, tried to use NY's publicity rights (sometimes called privacy rights) law, basically arguing that people weren't allowed to use his name/likeness without his permission. That failed pretty spectacularly too:

This statute has been narrow construed to meet its limited objective to prohibit commercial appropriation of a
person's name and likeness.... These sections also do not apply to reports of "newsworthy events or matters of public interest" otherwise known as the newsworthy exception.... To foster freedom of expression, the meaning of "newsworthiness" has been broadly construed to permit a wide and liberal interpretation....

In this case, it is abundantly clear that coverage of a murder trial in the Deaner case comes within the broadly construed newsworthy exception as a report of a newsworthy event or a matter of public concern. Thus, plaintiffs' fourth cause of action fails to state a claim for a violation...

The court also rejected Rakofsky request for sanctions on Marc Randazza, a lawyer who many of you are familiar with given his frequent appearance in stories on this blog. Randazza was representing many of the bloggers that Rakofsky sued, and Rakofsky apparently didn't like the way Randazza treated him, leading to a request for sanctions. The court rejected that too, noting that "Randazza's conduct was acceptable to practice law in this state, and impliedly not sanctionable."

On the flip side, the court did refuse to sanction Rakofsky, basically arguing that, viewed generously, some of the people reporting on the original case "did not fairly report Judge Jackson's comments." The court also notes that, since Rakofsky withdrew a claim of negligence against defendants he "partially acted in good faith."

We shall see what happens next, though Randazza certainly expects Rakofsky to appeal, and given Rakofsky's two-plus year aggressive pursuit of this case, I think it's likely that, indeed, there will be an appeal, though I find it unlikely that the results of any appeal will turn out any better for Rakofsky.

from the rakofsky'd dept

Yikes. Here's a story that's been making the law blog rounds that I hadn't heard about until now. There's a lot of background here, so I'll see if I can catch you up. Apparently, the family of someone accused of murder hired a 2009 law school graduate named Joseph Rakofsky to be the accused man's lawyer. Rakofsky was admitted to the bar in New Jersey, but not in Washington DC where the case was heard. Apparently, Rakofsky did not do a very good job handling the case -- and the judge told him so in declaring a mistrial. The Washington Post covered the story, highlighting the judge's concern with Rakofsky:

A D.C. Superior Court judge declared a mistrial Friday in a 2008 murder case and allowed the defendant to fire his New York-based attorney, who exhibited what the judge said were numerous signs that he lacked knowledge of proper trial procedure, including telling the jury during his opening statements that he had never tried a case before.

Judge William Jackson told attorney Joseph Rakofsky during a hearing Friday that he was "astonished" at his performance and at his "not having a good grasp of legal procedures" before dismissing him.

What angered Jackson even more was a filing he received early Friday from an investigator hired by Rakofsky in which the attorney told the investigator via an attached e-mail to "trick" a government witness into testifying in court that she did not see his client at the murder scene.

According to the filing, Rakofsky had fired the investigator and refused to pay him after the investigator refused to carry out his orders with the witness. The filing included an e-mail that the investigator said was from Rakofsky, saying: "Thank you for your help. Please trick the old lady to say that she did not see the shooting or provide information to the lawyers about the shooting." The e-mail came from Rakofskyís e-mail account, which is registered to Rakofsky Law Firm in Freehold, N.J.

Believe it or not, there's a lot more in the story. The story caught the attention of plenty of law blogs, who then wrote about it, and (not surprisingly) they were not kind to Rakofsky. One law blogger has been keeping a list of blog posts about Rakofsky -- including some questions about claims on Rakofsky's website that appear to overstate his experiences and qualifications.

There are, of course, all sorts of ways to respond to such criticism. You could, for example, admit that you were wrong. You could learn from the experience. You could, if you believed any of the reports were incorrect, reach out to those who wrote the stories and ask them to correct them. You could go into hiding. Rakofsky, on the other hand, chose to sue almost everyone who had discussed the story, creating a case that some legal bloggers quickly dubbed Rakofsky v. Internet. You can see a copy of his filing embedded below, but along with suing a ton of bloggers, Rakofsky sued the Washington Post, Washington City Paper, Allbritton Communications and (believe it or not) the American Bar Association.

If you read the filing itself, it appears to be an attempt by Rakofsky to retry the murder case, going through many of the details in the case, before then stating that the judge in the case "slandered" Rakofsky... and posits that the judge may have done so because he was upset with the quality of Rakofsky's work in that it might help the accused:

... his anger may have been prompted by the diligence and zeal with which RAKOFSKY conducted his defense in the interest of the client as much as anything else, rather than any shortcoming in RAKOFSKY's knowledge of court procedure...

He also tries to explain away his own email that asked the investigator to "trick" a witness by saying it meant something else:

... BEAN sought to exploit, for the purpose of receiving compensation that was not due him, an email, which had been hastily typed by RAKOFSKY on a mobile device, that used an unfortunate choice of the word "trick" -- which, as BEAN knew only too well, was a shorthand word that meant only that Bean should underplay the fact that he worked for the defense-- which memorialized an earlier conversation between BEAN and RAKOFSKY concerning a non-witness, referring only to RAKOFSKY's suggestion to BEAN to understate the fact that he was employed by the defense...

And, yes, he goes on to claim that Bean then tried to "blackmail" him -- which certainly could lead to defamation charges back, if the claim is untrue.

Of course, all of this then leads to claims that pretty much everyone who repeated what happened in the courtroom or what Rakofsky actually did type in the email is guilty of defamation. One of the lawyers who was sued, Eric Turkewitz, has posted a pretty thorough discussion of the case, which is getting tons of attention and is worth reading in full. Turkewitz goes through the history, explains why he believes nothing he said was defamatory, and then, for good measure, piles on a few more things in an attempt to make his point clear:

Having given the basic outline of the story, I now turn to the part where I give my opinions. So let me go on to say that: In addition to being incompetent, I also think, based on the comments of the presiding judge, his co-counsel and the juror that spoke up, that he is unskillful, incapable, inept, unqualified, untrained, unprofessional, and clumsy. This is in addition to being a bumbler, blockhead, dolt, dingbat and chucklehead for having brought this suit, guaranteed to rain much unhappiness unto his name. Iíve got a thesaurus and Iím not afraid to use it.

He also sums up the ridiculousness of the lawsuit perfectly:

What was Rakofsky thinking? That a bunch of lawyers that make their living in the well of the courtroom, accustomed to walking a high-wire without a net as we cross-examine hostile witnesses, would somehow cower in fear at an utterly frivolous lawsuit? Did he think that those of us that write blogs, for all to see, might not somehow have a basic grasp of the First Amendment? Didnít he know, well before he even went to law school, that people have a right to set forth their opinions? How could he survive law school and pass a bar exam without knowing constitutional fundamentals? Perhaps the better question, why wasnít he thinking of what would happen in response to such a suit? Was he a spoiled child that got everything he wanted simply by throwing a tantrum?

And those of us that are practicing lawyers are the small fries, compared with our co-defendants Washington Post, American Bar Association and Thompson Reuters. Like they are going to roll over and pull down their articles? Good grief.

Rakofskyís choices at this point seem limited. But certainly, the first thing he ought to do is put away the damn shovel as he is burying himself with it.